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Tag: Regulation

Placing a value on the UK’s regulatory flexibility after Brexit should be key to informing the policy choices that need to be made by Parliament. But the government has adopted conflicting positions. It has told one story for general consumption and another in the Brexit debate. Which is right?

What is the value to the UK economy of the ability to set its own rules after Brexit? How much could be saved in costs to British business if unnecessary regulations were repealed and bad regulations replaced by better ones?

These questions are fundamental to the debate about what type of Brexit the UK should be working towards – or, for some people, whether it should still be working towards Brexit at all – but it is hard to find any convincing answer to them. The UK government appears to have no coherent position on the issue.

The Court of Appeal in Holmcroft v KPMG upheld the Divisional Court’s judgment that KPMG was not amenable to judicial review on all the facts of the case, but differed sharply in its reasons for reaching that conclusion. Was its rationale any more convincing than that of the first instance court? Not really.

The title question was rhetorical. The answer is yes because, regardless of the source of its powers, a body can be ‘public’ – and therefore capable of being judicially reviewed – to the extent that it exercises a public function. There is no special exception for big firms of accountants, or anyone else.

However, this obviously begs a further question. When, and in what circumstances, does someone exercise a public function?

On this I was critical of the Divisional Court – not so much because of the outcome on the particular facts of Holmcroft, but because of the inadequacy of the reasoning by which the court got there. Indeed the whole of the law in this area – the law relating to a body’s ‘amenability’ to judicial review’ – is inadequate at many levels.

Holmcroft was appealed, and we now have the decision of the Court of Appeal, in which the leading judgment was delivered by Lady Justice Arden, her last before taking her seat (as Lady Arden) in the Supreme Court. Might this resolve some of the problems with the first instance judgment?

In R (Black) v Secretary of State for Justice, the Supreme Court was required to consider when Acts of Parliament are binding on the Crown. It found that the existing law was inconsistent and unsatisfactory. It then made things worse.

The UK Supreme Court’s year in 2017 was framed by two constitutional cases rooted in the medieval history of the British monarchy.

The first of these cases, which was related to the legal mechanism for delivering Brexit, achieved wide publicity. The second did not. But the judgment in Black is revealing as to the state of the UK constitution as it enters 2018, and of practical application in a wide range of cases. It tells us something about why the Crown still matters in UK law.

The ‘Big Four’ accounting firms are commercial organisations par excellence. And they are highly successful. They could be the poster children for globalised capitalism in the Twenty-first Century.

In that capacity, from time to time, their collective strength in certain product markets engages the attention of the competition authorities – as it did, for instance, in the UK Competition Commission’s inquiry into statutory audit services.

But competition law is about preventing the abuse of commercial power, and public law is about preventing the abuse of governmental power. These legal disciplines come from the opposite ends of the public-private spectrum. Are there any circumstances in which an organisation as intrinsically commercial as a major accounting firm can also be regarded as a public body and subject to the requirements of public law?

This was the question addressed by the Divisional Court in R (Holmcroft Properties) v KPMG. The case is revealing as to the courts’ approach to applying public law in a complex public-private environment, and in particular their failure to form a coherent view of how regulation operates.